C-105/75

A competition organized by the appointing that official to the post appointing authority for the sole purpose declared vacant is contrary to the aims of of remedying the anomalous adminis­ any recruitment procedure and thus trative status of a specific official and of constitutes a misuse of powers.

In Case 105/75

Franco Giuffrida, an official of the Council of the European Communities, Brussels, represented by Marcel Grégoire and Edmond Lebrun, Advocates of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate at the Court, 83 boulevard Grande-Duchesse Charlotte,

applicant, v

Council of the European Communities, Brussels, represented by Roger O. Dalco, Advocate of the Brussels Bar, acting as Agent, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 2, rue Goethe,

defendant,

gives the following

JUDGMENT

Facts

The facts and the arguments put forward On 30 May the applicant submitted a by the parties during the written complaint against this decision under procedure may be summarized as Article 90 (2) of the Staff Regulations of follows: Officials.

His complaint was rejected by a letter I — Facts and written procedure from the Secretary-General dated 16 September 1975 and the applicant 1. By Notice No 11/75-I of 18 brought the present application on 3 February 1975 the Secretariat-General of October 1975. the Council drew the attention of the staff to Notice of Internal Competition 2. The written procedure followed the No Council/A/108. The competition was normal course. to be held on the basis of qualifications and concerned a vacant post of principal Upon hearing the report of the administrator in career bracket A 5/A 4, Judge-Rapporteur and the views of the to be filled in Grade A 4. Advocate-General the Court (First Chamber) decided to open the oral The applicant, who held the post of procedure without holding any principal administrator in Grade A 5 preparatory inquiry. However, it in the Legal Department of the requested the defendant to submit the Secretariat-General, submitted his Memorandum of 12 June 1975 before application on 3 March 1975. the date of the hearing.

Emilio Martino, a reviser in the Language Service classified in Grade L/A 4, II — Conclusions of the parties submitted his application on 4 March 1975. The applicant claims that the Court should: The decision to appoint Mr Martino to '1. Annul the decision of the defendant the post in question was published on 20 published on 20 May 1975 May 1975. appointing Emilio Martino to the

post of principal administrator in Secretary General of the Council of 21 career bracket A 5/A 4, in Grade A 4, March 1973 (Annex 7 to the application) which was the subject of Notice internal competitions enabling officials of Internal Competition No to enter Categories A, B and C must take Council/A/108; place 'on the basis of qualifications and 2. Annul all decisions prior to and/or tests'. As the appointment of Mr Martino concomitant with the decision of to Grade A 4 involved his moving from appointment referred to at 1. above, the Language Service into Category A, in particular, the decision not to have Internal Competition No A/ 108 should recourse for the purpose of filling the have been organized on the basis of vacancy in question to the procedure qualifications and tests and not merely of promotion and the decision to on the basis of qualifications. organize Internal Competition No Council/A/108 on the basis of The defendant maintains that the qualifications; submission is not well founded for the 3. Annul the express decision rejecting simple reason that the memorandum of the applicant's complaint lodged on 21 March 1973 from the Secretary- 30 May 1975; General does not constitute a 'decision' 4. Order the defendant to bear the in the true sense. This memorandum costs.' merely laid down a particular approach to be followed within the context of a The defendant contends that the Court long-term policy for advancement should: meeting the wishes of the staff and the requirements of the service. 'Declare that the application is unfounded and dismiss it. Furthermore, as the memorandum in question dealt with competitions which the administration was proposing to III — Submissions and argu­ organize from time to time on a general ments of the parties basis to enable officials to enter a higher category or service pursuant to Article 45 In support of his application the of the Staff Regulations, it did not applicant makes the following provide for cases such as the present submissions: which concerned appointment to a — Non-compliance with the terms of specific post. the decision of the Council of 21 March 1973; The applicant maintains that the fact — Disregard of the principle of equal that the memorandum of 21 March 1973 treatment of officials and of the terms is a 'decision' is shown: of Article 5 (3) of the Staff — by its wording; Regulations of Officials; — by the events which led up to it, — Infringement of the terms of Article which show that it is a measure 29 (1) (a) and (b); resulting from an agreement between — Infringement of the terms of Article the Secretary-General and represen­ 7 and the third paragraph of Article tatives of the staff; 27 of the Staff Regulations of — by its context since it contains Officials and misuse of powers. sections dealing with the 'Joint Committee' and the 'Consultative (1) Non-compliance with the decision of Committees on Advancement'. the Council of 21 March 1973 Furthermore, to maintain that the The applicant observes that according to 'decision' in question is not applicable to the express terms of the decision of the a case — such as the present — in which

a specific post is to be filled is to prevent which took place solely on the basis of it from having any practical effect. qualifications and this classification Moreover, such an argument is contrary therefore disregards the principle, which to the very wording of the decision and is recognized by the Court, that all disregards the terms of the first officials shall be treated equally and, in paragraph of Article 4 of the Staff particular, the provision contained in Regulations. Article 5 (3) of the Staff Regulations which states that 'Identical conditions of The defendant objects further that far recruitment and service career shall apply from constituting a decision concerning to all officials belonging to the same the organization of examinations the category or the same service'. letter of 21 March 1973 merely lays down a general principle, that of In reply, the defendant puts forward the 'auto-recruitment', which is based upon objection that the transfer of Mr Martino reasons of expediency, but does not lay from L/A 4 to A 4 is entirely in down detailed rules for its application. accordance with the Staff Regulations These rules, which have first to be and does not infringe the terms of studied by the Joint Committee, had not Article 45 (2), according to which 'An been drawn up in detail or adopted when official may be transferred from one the contested appointment was made. service to another or promoted from one The differences of formulation and category to another only on the basis of a conception between the letter of 21 competition'.

applicant, namely that 'Where a 1973 is in the nature of a decision, it decision is taken to appoint an refers to the organization of open official to a post in a career bracket in competitions to be held from time to a higher category, such official shall time and by no means prohibits the be classified in the starting grade of organization of a specific competition or that career bracket', is contained in a governs the arrangements therefor. decision of the Commission of 10 Moreover, in this instance there is no March 1971 and therefore is not entry into a 'higher' category, as under applicable as such to the Council; the Staff Regulations the Language — In any case, a competition was Service is assimilated to Category A. organized in this instance; —Finally, Article 5 (3) of the Staff (2) Disregard of the principle of equal Regulations does not apply to the

GIUFFRIDA v COUNCIL

accordance with the principle contained in Article 5 (3) of the Treaty. The applicant replies that the Court of Justice has itself acknowledged that the The defendant observes that the very question whether a post can be filled by absence of any common hierarchy promotion must be considered before a between the Language Service and decision is taken to organize an internal Category A is sufficient to rule out any competition. Moreover, it is incorrect to obligation on the administration to claim that this case concerns the transfer appoint Mr Martino to the starting grade or promotion of an official: on the

JUDGMENT OF 29. 9. 1976 – CASE 105/75

placed on the same level. Therefore, as admission to the competition (that the successful candidate must have no entry into a higher category was involved in this case and as it was under 'held the secretariat for meetings of no obligation to organize an internal Council working parties or competition the administration would Committees for at least four years), have filled the vacant post by transfer which was drawn up specifically with Mr Martino in mind; and not by an internal competition if, as the applicant claims, it had wished to — The selection board failed to draw up the list of suitable candidates in favour Mr Martino, all the more so as the results of the competition would have to descending order of merit or at least bind the appointing authority, even if did not expressly do so; it thus they were unfavourable to Mr. Martino. ignored the very concept of the 'list of suitable candidates or, at all

official appointed. In support of this existence of a discriminatory submission the applicant emphasizes the situation, it was of course that following points in particular: affecting Mr Martino who had, over a — I he communication from the long period, been performing duties Secretary-General of 14 November appropriate to Category A. Although 1974 shows that even before the perhaps anomalous, the situation in internal competition in question was question was only the result of the held it had been decided to award the constant demands of the service and vacant post to the candidate who was it had to be remedied so that the Staff in fact appointed; Regulations could be observed; — The question whether the post in — The notice of competition contained question could be filled by no condition as to nationality.

GIUFFRIDA v COUNCIL

liberty, in the light of the particular base its findings on these requirements requirements of the post to be filled, alone. The determining factor for the to make its selection on the basis of purposes of its decision appears to have certain specific training which the been the experience of Mr Martino, candidate must possess; which is eight years longer than that of — Although the notice of competition the applicant. gives a detailed description of the dudes involved in the post to be In addition, the defendant regrets the filled, it attaches no condition of rather polemical tone of the application admission based directly on the and the reply and adds that it has not particular area of activity in question. considered it necessary to reply to all the allegations and insinuations made by the The applicant continues to maintain that applicant, for the simple reason that they the description of the duties to be are outside the scope of the discussion. performed as contained in the vacancy The purpose of the action is not to notice played a decisive role in the question the intentions of the Council or outcome of the competition. The the Italian delegation, but merely to selection board in fact drew up a list of check whether the terms of the Staff suitable candidates in the light of the Regulations have been applied in this knowledge and experience of the instance. The evidence put forward by candidates in the sector of regio­ the Council leaves no doubt as to the nal policy, on the basis of an assessment regularity of the competition procedure which could do nothing but favour Mr in dispute. Martino.

4 The decision making the appointment in question was adopted following Internal Competition on the Basis of Qualifications No A/ 108, the notice of competition for which was published on 18 February 1975 in Communication No 11/75-I from the Secretary-General.

5 Under the terms of the first paragraph of Article 27 of the Staff Regulations 'Recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity ...'

6 In addition, Article 29 of the Staff Regulations lays down the necessary recruitment procedures — which, in paragraph 1 (b), include the internal competition — so that vacant posts may be filled by officials chosen on the basis of objective criteria and only in the interests of the service.

7 In his note of 14 November 1974, in which he replied to the criticisms made by the Amalgamated European Public Service Union in its Bulletin of 7 November 1974, the Secretary-General stated that:

'— The question of the transfer of an official in Grade L/A 4 to Grade A 4 as a result of a competition arose out of a desire to mitigate an anomalous situation which has already lasted for some years and which came into existence as the result of excessive leniency on the part of the administration.

— It will be impossible for such a situation to arise in future. Measures will be adopted to ensure that in the near future the tasks performed by each official are those of his category or service.'

13 It is not disputed that such a restrictive condition corresponds exactly to the duties performed by Emilio Martino in his previous post.

14 Furthermore, none of the information provided by the defendant shows why it was necessary in the interests of the service to lay down such a specific condition as regards the duration of the duties referred to.

15 Furthermore, in a memorandum dated 21 March 1973 which was drawn up after agreement with the staff representatives, the Secretary-General of the Council had given the Directorate for Administration certain directives in relation to internal competitions (section III).

16 The memorandum provided, in particular, that 'in order to ensure the equal treatment of all officials internal competitions will take place on the basis of qualifications and tests offering the same guarantees of selection as open competitions although adapted to the internal nature of the competition and the types of post to be filled'.

JUDGMENT OF 29. 9. 1976 — CASE 105/75

17 Whether or not the memorandum in question was at that time in the nature of a decision, the fact remains that, in the interests of proper administration and in so far as an internal competition may result in transfer or promotion into a higher category or into the Language Service, the appointing authority should have regarded itself as under a moral obligation to comply with it and, therefore, to organize the competition in question on the basis not only of qualifications but of tests also.

THE COURT (First Chamber)

hereby:

1. Annuls the contested decision;

2. Orders the defendant to pay the costs of the action.

O'Keeffe Donner Capotorti

Delivered in open court in Luxembourg on 29 September 1976.